The opinion of the court was delivered by: Bumb, United States District Judge
NOT FOR PUBLICATION [Docket Entry Nos. 45 and 55]
Third-Party Defendant UPS Ground Freight Inc., d/b/a UPS Freight, f/k/a Overnite Transportation ("UPS"), moves for summary judgment dismissing the Complaint filed by Third-Party Plaintiff Preferred Metal Technologies, Inc. ("PMT") and to strike an affidavit submitted by PMT in opposition to summary judgment. For the following reasons, UPS's motion for summary judgment is granted, in part, and denied, in part. UPS's motion to strike is denied.
The following facts are not in dispute. Holtec International Corporation ("Holtec") sold two crates of "RackSavers," fabricated borated aluminum panels, to Florida Power & Light Company ("FP&L").*fn1 UPS's Statement of Undisputed Material Facts ("UPS SOF") ¶¶ 2-4; PMT's Response Statement of Undisputed Material Facts ("PMT RSOF") ¶¶ 2-4. PMT manufactures the RackSavers. Id. PMT used UPS as the motor carrier to transport the two crates to FP&L. UPS SOF ¶¶ 8-9; PMT RSOF ¶¶ 8-9.
The RackSavers arrived at FP&L damaged. UPS SOF ¶ 2; PMT RSOF ¶ 2. PMT notified UPS of the damage, and on December 27, 2005, PMT sent a "Claim for Loss or Damage" to UPS for the damaged shipment. UPS SOF ¶ 19; PMT RSOF ¶ 19; Laverty Decl. Ex.C. in Support of Summ. J. In the section that called for the amount of the claim, PMT wrote "To Be Determined." Laverty Decl. Ex. C. UPS responded to PMT's claim on January 4, 2006 stating, "We acknowledge receipt of the above referenced claim. However, before the investigation can begin we are requesting additional information indicated by the document(s) below - Amount of Claim and How Determined." UPS SOF ¶ 24; PMT RSOF ¶ 24; Laverty Decl. Ex. D. In response to UPS's letter, PMT sent three letters updating UPS on the status of its claim dated: July 31, 2006, November 27, 2006, and March 20, 2008. PMT Counter Statement of Facts ("CSOF") ¶¶ 16-18; Haworth Decl. Ex. J, K, L in Opp. to Summ. J.
In its motion for summary judgment, UPS argues: 1) the Third-Party Complaint is time-barred because PMT failed to file an appropriate "claim," as that term is defined in 49 C.F.R. § 1005.2, an implementing regulation of the Carmack Amendment, 49 U.S.C. § 14706; 2) alternatively, PMT failed to file its Complaint within the required two-year statute of limitations after UPS denied its claim; and 3) even if PMT has a viable claim, such claim is limited to $5,600 pursuant to the rate set forth in UPS's freight tariff.*fn2
Summary judgment should be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the non-moving party bears the burden of persuasion at trial, 'the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden.'" Id. (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998)). Upon such a showing, the burden shifts to the non-moving party to produce evidence of a genuine, factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant's burden is rigorous: it "must point to concrete evidence in the record"; mere allegations, conclusions, conjecture and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir.1995).
When considering a summary judgment motion, the Court does not weigh evidence; rather, all reasonable "inferences, doubts, and issues of credibility should be resolved against the moving party." Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, a mere "scintilla of evidence," without more, will not give rise to a genuine issue for trial. Anderson, 477 U.S. at 252. Summary judgment is appropriate "where the record ... could not lead a rational trier of fact to find for the nonmoving party ...." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Summary judgment motions thus require judges to 'assess how one-sided evidence is, or what a ...